Taco Bell killer wants judge disqualified

The man convicted of killing a Taco Bell worker during a robbery has asked that Circuit Judge Leah R. Case disqualify herself.

By Frank Fernandezfrank.fernandez@news-jrnl.com

DAYTONA BEACH — The man convicted of killing a Taco Bell worker during a robbery has asked that Circuit Judge Leah R. Case disqualify herself because she once worked as a prosecutor for the state attorney whose religious references prompted a federal appeals court to overturn his death sentence.Anthony Farina, 40, was convicted in the slaying of 17-year-old Michelle Van Ness during a robbery of a Taco Bell in Daytona Beach on May 9, 1992. Farina has twice been sentenced to death but courts have twice overturned the death sentences and sent Farina back to be resentenced. Also convicted in the killing was Farina’s brother Jeffrey Farina, the triggerman. Anthony Farina’s second death sentence was overturned by the 11th Circuit Court of Appeals in Atlanta because of biblical remarks made by then-State Attorney John Tanner during his cross examination of a prison pastor. Now Anthony Farina is facing his third possible death sentence and Judge Case drew the assignment.Case was an assistant state attorney working for Tanner in 1998 when Tanner was prosecuting Farina’s resentencing, according to the motion filed by Farina’s defense attorney Garry Wood.Wood’s motion cites the Judicial Code of Conduct which reads in part that judges should disqualify themselves if their partiality might be reasonably questioned including when “... a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter.”Wood’s motion includes an affidavit signed by Anthony Farina which states that given Case’s association with murder prosecutions, “I am in fear of not receiving a fair and impartial resentencing hearing.”Case declined comment Friday through a spokeswoman. Wood’s motion is “meritorious,” said Tamara Lave, an associate professor of law at the University of Miami School of Law.“I actually think that this is sort of a no-brainer in the sense that I think the motion should be granted and the judge should disqualify herself,” Lave said in a phone interview Friday.While the motion goes on to say that Case was a former prosecutor who handled high-profile cases, the real issue is her association with Tanner.“The issue isn’t whether or not a judge has been a prosecutor before,” Lave said. “In my experience most judges have been prosecutors before. The issue is that this particular judge worked for the prosecutor who was responsible for engaging in improper conduct which ended up in a sentence being overturned.”Tanner said in a phone interview Friday that he did not believe Case worked directly on the Farina prosecution.“I don’t recall her having any contact with the Farina case,” Tanner said. “I don’t believe she was in homicide at the time.”Tanner also said he does not believe Case should disqualify herself merely because she was a prosecutor in the office at the time.“The mere fact that she’s in the office doesn’t taint her because that case came through the office,” Tanner said.Anthony Farina’s latest death sentence was overturned when the appeals court ruled Tanner went too far when questioning the Rev. James Davis, a prison pastor who had been called by defense attorney William Hathaway to testify about counseling Anthony Farina at prison. Tanner drew heavily from the Bible during his questioning of Davis, “urging the implementation of God’s law,” the 11th Circuit ruling states. “While elevating his own station as divinely ordained authority, the prosecutor made clear that the death penalty was the sole acceptable punishment under divine law, noting how Christ himself refused to grant a felon forgiveness from the death penalty.”Anthony and Jeffrey Farina forced four workers into a freezer and then Jeffrey Farina shot three of them before the gun misfired. Jeffrey Farina then stabbed a fourth employee. All survived except for Van Ness.Jeffrey Farina also received the death penalty but the Florida Supreme Court reduced his sentence to life because he was 16 at the time he killed Van Ness.Lave said the stakes are high in a death penalty case.Case joined the State Attorney’s Office in 1994 and was among a team of prosecutors who prosecuted the 2004 mass murder of six people in Deltona. She also handled the 2009 conviction of Enoch Hall, an inmate who killed an officer at Tomoka Correctional Institution.Case was the chief assistant state attorney for current State Attorney R.J. Larizza in 2010 when she was appointed to the bench.“You want this case to meet the smell test,” Lave said. “You want people, who are thoughtful people that aren’t biased, to look at this and think ‘This was a process that was done with integrity and this defendant had due process rights, and he had the full weight of the American justice system working the way it should work.’”